Quieting Cognitive Bias with Standards for Witness Communications

31 Pages Posted: 24 May 2011

See all articles by Melanie D. Wilson

Melanie D. Wilson

University of Tennessee College of Law

Date Written: May 23, 2011


Last year, as part of a project to revise the ABA Criminal Justice Standards for Prosecution and Defense Functions, the ABA Criminal Justice Section initiated round-table discussions with prosecutors, criminal defense lawyers, and academics throughout the United States. The Standards under review provide aspirational guidance for all criminal law practitioners. This Article stems from the Criminal Justice Section's undertaking. It considers the wording, scope, and propriety of several of the proposed changes that address lawyer-witness communications. It begins with a discussion of the effects of cognitive bias on these communications and explains why carefully tailored standards may lessen the detrimental impact of those biases. Then, the Article examines in detail three challenging, yet common aspects of communications that the Standards seek to influence: (1) communicating with witnesses about their future communications with opposing counsel, (2) communicating warnings to witnesses, and (3) communicating with experts. Ultimately, the Article argues for clarity in the Standards to reduce the impact of unwanted cognitive bias to which we are all vulnerable.

Suggested Citation

Wilson, Melanie D., Quieting Cognitive Bias with Standards for Witness Communications (May 23, 2011). Hastings Law Journal, Vol. 62, No. 101, 2011, Available at SSRN: https://ssrn.com/abstract=1850819

Melanie D. Wilson (Contact Author)

University of Tennessee College of Law ( email )

1505 West Cumberland Avenue
Knoxville, TN 37996
United States

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